Suggestion that complainant contrived 911 call injected an allegation of ‘fabrication’ into hearsay analysis

Supreme court | Evidence | Corroboration | When required

Accused was convicted of sexual assault and unlawful confinement arising out of incident at complainant’s apartment. Accused began making sexual advances towards complainant and refused to leave or let her leave. Complainant called 911. Accused also threatened her with knife, and kissed her forcibly before complainant jumped off her balcony to escape. Complainant told her neighbours someone had attempted to stab her. At trial, complainant’s reliability and credibility were central issues. Accused appealed. Appeal dismissed. Res gestae statements typically cannot be used as confirmatory evidence but accused’s suggestion that complainant contrived 911 call “injected an allegation of ‘fabrication’ into hearsay analysis. While not traditional allegation of ”recent fabrication“ that could render prior consisted statements admissible, it engaged similar issues. Trial judge’s analysis was directly responsive to accused’s submission and not to confirmatory weight of evidence. Further, complainant’s statement to her neighbour immediately after jumping off balcony that she had done so before someone was trying to stab her was admissible as part of res gestae. Trial judge made no error in relying on statement as confirmatory of complainant’s account. Accused appealed. Appeal dismissed. Court of Appeal’s analysis was correct.

R. v. Demedeiros (2019), 2019 CarswellAlta 271, 2019 CarswellAlta 272, 2019 SCC 11, 2019 CSC 11, Moldaver J., Gascon J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2018), 2018 CarswellAlta 1313, 2018 ABCA 241, Ronald Berger J.A., Peter Costigan J.A., and Frans Slatter J.A. (Alta. C.A.).

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